Good News And Bad News On Employment At Will 8 27 08, By Drew Capuder

Manchin Professional Building 1543 Fairmont Avenue, Suite 207 Fairmont, West Virginia 26554 Voice: 304-333-5261 Fax: 304-367-1868 Email: dcapuder@capuderfantasia.com Web: www.capuderfantasia.com The Good News and Bad News on Employment at Will for Lorman Education Services’ seminar: “Employee Discipline and Discharge: How to Avoid Employment Litigation in West Virginia” in Morgantown, WV, August 27, 2008 Drew M. Capuder CAPUDER FANTASIA PLLC CF

Biography: Drew M. Capuder Licensed in West Virginia and Texas; practicing law 23 years. Drew Capuder’s practice consists primarily of employment litigation and consulting, and also includes mediation, commercial litigation, and business consulting. Author of Drew Capuder’s Employment Law Blog; http://capuderfantasia.com/blog/ Gina Fantasia’s practice focuses on real estate law (especially for banks), insurance law, and business advice. Teaching: “Legal and Ethical Issues in Media,” at Fairmont State University (2005 to present). Teaching: Legal Writing at University of Houston Law School (1992-1998). Several appearances during the last 5 years on WAJR’s radio program “Ask the Experts”; appearance for WBOY TV on the WVU-Rodriguez lawsuit. Several Lectures and Television Appearances for the Texas Society of CPAs from 1992-1998 JD, University of Houston Law School, 1985; BA, University of Southwest Louisiana (now named University of Louisiana), in Music Theory and Composition 2 Drew M. Capuder, Capuder Fantasia PLLC

Classic statement of the employment at will rule (page 5) An employer may terminate an employee for: Good reasons, Bad reasons, and No reason at all. But not for a reason specifically prohibited by the law. Skaggs v. Elk Run Coal Company, Inc., 198 W.Va. 51, 78, 479 S.E.2d 561, 588 (1996). “[I]n the absence of some contractual or legal provision to the contrary, an employment relationship may be terminated, with or without cause, at the will of either the employer or the employee.” Bine v. Owens, 208 W. Va. 679, 682, 542 S.E.2d 842, 845 (2000). 3 Drew M. Capuder, Capuder Fantasia PLLC

Examples of good reason, bad reason, no reason (p.5) An employer may terminate an employee for all of the following reasons, and here are examples: No reason: “Drew, you’re fired. Why boss? No reason at all Drew—I just woke up this morning and said to myself that I thought I’d fire the first poor schmuck that I saw this morning.” No reason, lawful. Bad reason: “Drew, you’re fired. Why boss? Heck, I’ve been working here for 37 years and I’ve won all performance and humanitarian awards. Just last Tuesday, boss, you and the Dalai Lama said I was the greatest person who ever lived. Well, Drew, I think you stole 10 dollars out of the cash register yesterday. Yikes, boss, the cash register is constantly under video surveillance.You can watch the video and you’ll see that I didn’t steal the 10 dollars.You know I’ve taken a vow of poverty and give all my salary to charity, after making sure grandma’s iron lung is properly maintained. Drew, you know I’m bored by TV. And I never said that I was a darned monument to justice. You’re fired, and you’re ugly, too.” Bad reason, lawful. Good reason: “Drew, you’re fired. Why boss? Drew, yesterday, you shot 12 co-workers to death in the company lunch room. Boss, Fred shot 14 co-workers last week and you didn’t fire him! That’s discrimination!! Come on, Drew, you know the SWAT team shot Fred to death before I could fire him. Hell, I even did CPR on Fred so I could fire him before he died, but I couldn’t revive the SOB. And by the way, Drew, while you were killing everybody in the lunch room yesterday, I was meeting with auditors, and I found out that you embezzled 12 billion dollars last year. So Drew, you’re fired, and 13 different law enforcement agencies are here to help you collect your personal belongings.” Good reason, lawful. 4 Drew M. Capuder, Capuder Fantasia PLLC

History of Employment Discrimination Laws Focus on Federal and West Virginia Discrimination 5 Drew M. Capuder, Capuder Fantasia PLLC

Limits on statutory exceptions to at will rule (not in article) “It is important that litigants and lower courts do not read too much into today’s ruling. To be sure, our discrimination laws are not a form of job assurance for handicapped individuals or any other protected class members. Employers retain the right to restructure jobs and exercise business judgment, including even bad judgment. Employees can be let go for any reason or for no reason, provided that the reason is not a prohibited one. [citations omitted] Accommodation regards efforts that address an individual’s ability to perform a job, not his or her entitlement to it.” Skaggs v. Elk Run Coal Company, Inc., 198 W. Va. 51, 79, 479 S.E.2d 561, 589 (1996) (emphasis added) 6 Drew M. Capuder, Capuder Fantasia PLLC

Protected characteristics under WV (and federal) anti-discrimination laws (page 6) From the West Virginia Human Rights Act, W. Va. Code § 5-11-9(3), you can’t fire (or otherwise disadvantage) an employee: Because of the employee’s race Because of the employee’s religion Because of the employee’s color Because of the employee’s national origin Because of the employee’s ancestry Because of the employee’s sex Because of the employee’s age Because of the employee’s blindness or disability 7 Drew M. Capuder, Capuder Fantasia PLLC

Protected characteristics under WV Workers’ Compensation Act (pages 6-7) From the West Virginia Workers’ Compensation Act, W. Va. Code § 23-1-1 et seq., you can’t fire (or otherwise disadvantage) an employee: Because the employee received or attempted to receive benefits under the Act, § 23-5A-1 Because the employee is “off work due to a compensable injury” and “is receiving or is eligible to receive temporary total disability benefits”, § 23-5A-3(b) 8 Drew M. Capuder, Capuder Fantasia PLLC

Termination in violation of public policy under the Harless case (pages 7-8) Under the doctrine enunciated in Harless v. First National Bank of Fairmont, 162 W. Va. 116, 246 S.E.2d 270, 275 (1978) (emphasis added), a discharge is actionable where the “employer's motivation for the discharge contravenes some substantial public policy principle.” 9 Drew M. Capuder, Capuder Fantasia PLLC

Categories of claims under the Harless case (pages 7-8) The categories thus far of prohibited reasons under the Harless doctrine are: Category Example Because the employer pressured the employee to Example: Employer fired employee for refusing to operate break the law and the employee refused vehicle with brakes in unsafe working condition in violation of specific W.Va. statutes. See, e.g., Lilly v. Overnight Transportation Co., 188 W.Va. 538, 425 S.E.2d 214 (1992). Because the employee complained about the Example: Employee complains that his employer bank is employer breaking the law (regardless of whether overcharging customers in violation of consumer the complaining employee himself was pressured protection law, and employer retaliates and fires the to break the law) employee, see, e.g., Harless v. First National Bank of Fairmont, 162 W.Va. 116, 246 S.E.2d 270, 275 (1978). Because the employer insisted that employee do Example: Employee refused to take a mandatory drug test something which violated a right of the employee, and got fired; the demand for a drug test violated the and the employee refused employee’s right of privacy, and the employer’s termination of the employee was actionable, Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990). Because the employee did something which the law Example: Employee in convenience store is being robbed, regards as a right in self defense shoots the robber, and employer fired the employee; employee exercised right of self-defense and could not be fired for doing so, Feliciano v. 7-Eleven, Inc., 210 W.Va. 740; 559 S.E.2d 713 (2001). 10 Drew M. Capuder, Capuder Fantasia PLLC

Thoughts on Preventing Employment Litigation (pages 13-25) What causes risk in the work place? (things, documents, conduct, people) Who might complain and who might sue? (employees, former employees, others) Points in time at which risks arise (drafting policies, creating positions, key employment decisions, reductions in force, plant closings) What can you do to control the risk? Forums in which risks and exposure are decided (grievance proceedings, EEOC, arbitration, court, mediation, trial) Possible outcomes of litigation (the good and the bad) Negative effects of litigation (so we can focus on avoidance, and control the negative effects) 11 Drew M. Capuder, Capuder Fantasia PLLC

What causes risk in the workplace (pages 14-17)? People Supervisors, co-workers, HR, personnel Customers Vendors Conduct Decisions: termination, hiring, promotion, raises, evaluations, benefits, investigations Treatment of employees: sexual conduct, anger, profanity, humiliation, disparaging remarks, favoritism, violence, favoritism, ostracizing, denial of accommodations Breaking the law: discrimination, dangerous conduct, illegal business practices Physical things Physical facilities and layout Computers, phones Documents Policies, emails, memos, letters Specific: termination letters, performance reviews, job offer letters, disciplinary memos, grievance decisions, etc. 12 Drew M. Capuder, Capuder Fantasia PLLC

Who might complain and who might sue (pages 17-18)? Current employees. Types: The complainer The lawsuit seeker The bad employee The good employee Former employees Same types as the current employees, except (probably) for the good employee Others Relatives of the employees who think they were wronged Friends of the employees who think they were wronged Co-workers (they might “oppose” mistreatment of others) Customers Vendors Lawyers of current and past employees The good lawyer The stupid lawyer The dishonest lawyer (Your paper trail might dissuade some of these lawyers from filing suit) 13 Drew M. Capuder, Capuder Fantasia PLLC

Points in time at which risk arises (pages 18-19)? Drafting/formulation of Termination; policies/procedures; Phone calls/discussions with Creating a position; employees after Posting a position; termination (including the Interviews; exit interview); Hiring; Sending an explanation for termination (including Reviews; responding to proceedings Discipline; such as claims for Investigations; unemployment benefits); Grievance proceedings; Reductions in force; and Promotions; Plant closings. Raises; 14 Drew M. Capuder, Capuder Fantasia PLLC

What can you do to control the risk (pages 19-20)? Examine the following: Current practices at the Our practices, if those practices company; are imperfect, and (Note: In other words, what are Current documents that the inherent risks attached to relate to the event/item; the event/situation, and what What are we doing wrong?; are the risks attached to our imperfect handling of it?); What are we doing that How can we reduce the may be failing to comply risks: with the law (that is Changes in policies/procedures; potentially a very different Changes in practices; issue from what we are Changes in documents; doing wrong)?; Changes in training; and What risks arise out of Changes in follow up. both: The event, even if we are handing it perfectly, 15 Drew M. Capuder, Capuder Fantasia PLLC

Forums in which risks and exposure are addressed (pages 20-21)? Informal meetings and discussions; Internal grievance processes; Union grievance proceedings; Equal Employment Opportunity Commission; Department of Labor (federal and state); West Virginia Human Rights Commission; Arbitration; Mediation; Court: Trial courts, and Appellate courts. 16 Drew M. Capuder, Capuder Fantasia PLLC

Possible outcomes in litigation (pages 21-22)? You (your company) did nothing wrong, and there is no realistic possibility that you will be adjudicated to have violated the rights of the plaintiff-employee. You very likely did nothing wrong, and a reasonable judge or jury should find in your favor, but there is a realistic possibility that a judge or jury could find against you. There is significant evidence that you did something wrong, and a reasonable judge or jury could find for you or against you. There is very significant evidence that you did something wrong, and it is much more likely than not that a judge or jury will find against you. 17 Drew M. Capuder, Capuder Fantasia PLLC

Limitations on your ability to evaluate your risk in litigation (page 22)? You know facts (or believe you know facts) which the jury will never know, so any reliance on those facts will improperly skew an evaluation of that the jury will likely conclude. You don’t know facts the jury will likely learn at trial from your opponent. No matter how well you know the facts of a particular employment dispute, it is unlikely that you will be able to walk away from trial without having experienced substantial surprises. Your evaluation of facts, and your predictions of what should happen at trial, is burdened with a wide range of personal, financial, and business biases or predispositions that create significant doubt as to whether your evaluation of likely outcome will be a predictor for what a jury or judge might conclude. 18 Drew M. Capuder, Capuder Fantasia PLLC

Negative effects of litigation, many of which can be controlled (page 23-24)? Diverted (wasted) management bad feelings amongst other time. employees. Lawsuits frequently Litigation expense generate in co-workers a Attorneys’ fees and expenses for the supportive attitude toward the employer. former employee suing you. Expenses for employees involved in the Encouraging litigation from other litigation (testifying, meeting with employees. counsel, etc.) The value of the lost time of your Negative effects on the employer’s employees. reputation, internally, and outside If the employee prevails, the reasonable the workplace. attorneys’ fees and expenses incurred by Possible negative effects on the employee’s lawyer. recruiting. Co-workers disrupted through litigation meetings, depositions, Potential negative effects on hearings, and trials business. Lost employee time. Gossip in the workplace about the Possible, discouraging certain customers litigation, including large amounts of from doing business with you. inaccurate gossip Negative publicity with the media. Negative effects on other Damage awards from the jury or employee’s morale, and stirring up jury; settlements. 19 Drew M. Capuder, Capuder Fantasia PLLC

Good News And Bad News On Employment At Will 8 27 08, By Drew Capuder

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